Government of New York - 1.Basic Land Use Tools for ... · Web view1.Basic Land Use Tools for Resiliency (Sections 1.1 – 1.2.4) There are many tools available to local governments

1. Basic Land Use Tools for Resiliency (Sections 1.1 – 1.2.4)

There are many tools available to local governments in New York State to regulate the use and development of land in accordance with a comprehensive plan. Basic tools include zoning, subdivision review, and site plan review. Statutory authority for municipalities to regulate development via zoning and special use permits, subdivision review, and site plan review is granted in New York State General City Law, Town Law, Village Law, and Municipal Home Rule Law.

Zoning can control the height of buildings, lot coverage, minimum distances (setbacks) from buildings to property lines or other features, the density of development, façade lines, building scale and bulk, allowable uses, requirements for certain uses, site access, utilities, parking, and more. The original intent of zoning was to avoid incompatible uses and nuisances, but it has developed into a powerful tool that can regulate the percentage of lot coverage and protect environmentally sensitive areas.

Carefully crafted land use laws can provide protection from erosion due to human actions; sea-level rise; storm surge; and flooding. Zoning allows the community to target regulations to areas at risk from damage. This can be done by creating discrete districts, amending existing districts, or by creating overlay districts that specifically address flooding issues. It can even be done by creating floating zoning districts with performance standards or specific criteria which would be applied in the event certain types of development were proposed.

Several basic tools can be used to reach the same goals. For example, to protect forested lands, which retain stormwater and reduce flood risks, the governing board of a municipality may:

• adopt a new subsection in the existing zoning law addressing woodland and forest protection and make those requirements applicable to all zones;• draft similar protection language but add the new requirements only to specific districts through amendments to those chapters of the zoning law; or • create a new chapter or subsection creating a “forest protection zone” and then amend the zoning map to show where the forest protection zone is located.

Without adequate zoning, development and redevelopment can continue in ways that place people, property, and critical infrastructure at risk from storm damage. Large structures in at-risk areas create damages, increase emergency costs, impact adjacent properties and are difficult to relocate or restore. Local coastal laws that establish setbacks based on rates of coastal erosion help secure community assets, reduce exposure to damages, and provide adaptive capacity for both human uses and environmental assets.

Model Local Laws to Increase Resilience: Chapter 1 1 | P a g e

1.1 Zoning Districts

A zoning map divides a municipality into various land use districts, such as residential, commercial, industrial or manufacturing, or mixed-use districts. The zoning law or ordinance describes the permissible land uses in each of the various zoning districts identified on the zoning map, and the dimensional standards for each district, such as the height of buildings, minimum distances (i.e., setbacks) from buildings to property lines, and the density of development.

Landforms, historical development patterns, transportation, compatible uses, and available resources are a few of the factors that go into determining the list of allowed uses, whether they be as-of-right or by special permit, and how those uses might be developed. Another consideration should be how potential zoning changes can impact the resiliency of the community to prepare and respond to sea-level rise, storm surge, flooding and other natural disasters.

Zoning District TechniquesTOOL CONTEXTWaterfront Zoning District

A district intended to enhance development deemed important to the waterfront, such as commercial, residential, and recreational uses and public access. It can reflect the cultural and historical heritage of a waterfront while it protects the visual, environmental and transportation links to and from the waterfront while emphasizing enhanced public access to the waterbody.

Waterfront Overlay District

A district of any shape or size that is superimposed over the underlying “base” zoning district(s) in order to protect a particular resource or guide development within a special area. The overlay district essentially adds to the base zoning requirements a layer of safeguards, standards, or incentives that may not be needed for the base zoning uses.

Transfer of Development Rights

A voluntary, incentive-based program that allows landowners in a “sending district” to sell development rights from their land to a developer for use in a “receiving district” as defined by the municipality. It usually involves maintaining density in one district by allowing density to be increased in other districts.

RESOURCES

Model Conservation Zoning District and Natural Resource Protection Standards . (2010). Lancaster County Planning Commission. 1


Conservation Advisory Councils and Boards: A Guide to the Organization and Operation of Local Environmental Advisory Councils. (1997). Westchester County Environmental Management Council.2

Haeckel, I. and L. Heady. Creating a Natural Resources Inventory: A Guide for Communities in the Hudson River Estuary Watershed. (2014). Department of Natural Resources, Cornell University, and New York State Department of Environmental Conservation, Hudson River Estuary Program.3

Conserving Natural Areas and Wildlife in Your Community: Smart Growth Strategies for Protecting the Biological Diversity of New York’s Hudson River Valley. (2008). New York State Department of Environmental Conservation. 4

Town of Clinton Recommended Model Development Principles for Protection of Natural Resources in the Hudson River Estuary Watershed: Consensus of the Local Site Planning Roundtable. (2006). Town of Clinton et al. 5

New York State Association of Conservation Commissions website at http://www.nysaccny.org/6


1.1.1 Waterfront Zoning DistrictA zoning district may be created that is located along the waterfront. The requirements can help the community achieve several goals, including:

Enhancing commercial development important to the waterfront; Protecting existing views; Protecting and enhancing marine-related uses of the waterfront; Providing for maximum public benefit in new development or redevelopment of land

while increasing public access to and from the waterfront; Eliminating or mitigating adverse environmental impacts; and Addressing the potential for flooding, coastal storm surge, or sea level rise.

The image below is a portion of the City of Hudson (NY) zoning map which shows the Core Riverfront (C-R) District, as well as the nearby Recreational Conservation (R-C) District and Riverfront Gateway (R-G) District.7 All three districts were added to the municipal zoning law in 2011, which states that the purpose of the C-R District is to “encourage a mixture of compatible uses at the riverfront; to provide access to the riverfront for water-dependent transportation and recreational uses and water-enhanced uses such as restaurants and publicly accessible walking and biking trails; to ensure that such uses are compatible; and to protect the visual, cultural, natural, ecological and historical resources of the City's core riverfront area.”8


The model below regulates a number of things, including uses on existing docks. Municipalities that wish to regulate the construction of docks, wharves, etc. may need specific authority, if located outside of Long Island. That authority may be achieved through the following methods:

Adoption of a NYS Department of State-approved Harbor Management Plan (see Executive Law Section 922;

Participation in the Hudson River Valley Greenway Compact (see Environmental Conservation Law Article 44);

Inclusion by special legislation in Navigation Law Section 46-a.

The example below contains resiliency provisions in the standard for special uses. While the resiliency provisions may not be extensive, the law would establish a framework in which additional resiliency measures could be enacted to protect the riverfront.

USAGE

Amend the section of the municipal zoning law establishing zoning districts to include a new district and amend the municipal zoning map to show the location of the district. Amend use and dimensional standards to include requirements related to the new zoning district.

ADAPTED FROM THE FOLLOWING SOURCE

City of Hudson (NY) Municipal Code, Chapter 325 Zoning, Article III District Use Regulations and Attachment 1, Section 325-17.1 Core Riverfront C-R District9

LANGUAGE

Section X. Riverfront District (RD)

A. District purpose. The purpose of the Riverfront District is to encourage a mixture of compatible uses at the riverfront; to provide access to the riverfront for water-dependent transportation and recreational uses and water-enhanced uses such as restaurants and publicly accessible walking and biking trails; to ensure that such uses are compatible; and to protect the visual, cultural, natural, ecological and historical resources of the [city/town/village]’s core riverfront area.

B. Site plan approval. All new uses or change of uses in the Riverfront District will be subject to site plan approval by the Planning Board pursuant to [insert section number and title for site plan review].

C. Permitted uses. Subject to the bulk and area regulations of the Riverfront District, no building shall be erected, moved, altered, rebuilt or enlarged, nor shall any land or building be used, designed or arranged to be used, in whole or in part, for any purpose in the Riverfront District except the following:


http://ecode360.com/13876045

(1) Public docks and launches for pleasure or recreational watercraft.

(2) Public parks, including but not limited to public beaches, boat launch areas, and playing fields.

(3) Public and private recreation facilities and amenities, including but not limited to snack bar or cafe to service public parks, walking and biking trails, boat rental facilities, information kiosks.

(4) Tour, commercial, charter, and/or fishing boat operations.

(5) Boating instruction schools.

(6) Water taxis and ferries.

D. Special uses. Other than the permissible uses set forth in Paragraph C above and the accessory uses set forth in Paragraph E below, and subject to the bulk and area regulations of the Riverfront District, no building shall be erected, moved, altered, rebuilt or enlarged, nor shall any land or improvement thereon be constructed, altered, paved, improved or rebuilt, in whole or in part, for any purpose in the Riverfront District, except that the following special uses are permitted, subject to the approval of the Planning Board in accordance with [ insert section number and title for special use permit review]. These uses are further subject to the regulations specified below and elsewhere in this chapter.

(1) Continuation of existing commercial dock operations for the transport and shipment of goods and raw materials, including loading and unloading facilities, and storage of such goods and raw materials, and associated private roads providing ingress and egress to or from such commercial dock operations, as such uses existed on the effective date of this law. Any existing commercial dock operation may continue to operate as a nonconforming use until such time as one or more of the actions or events specified in Paragraph D above is proposed to be undertaken. Where one of the actions or events specified in Paragraph D above is proposed, in addition to the provisions of [insert section number and title for special use permit review],and as more fully set forth in Paragraph G(2) below, the Planning Board shall impose additional conditions on such use as may be necessary to protect the health, safety and welfare of residents living in close proximity to commercial docks and the public while recreating and using public facilities adjacent to commercial docks [add the following if applicable, “as authorized in the Local Waterfront Revitalization Program”].

(2) A private causeway or private road that provides ingress to or egress from the property upon which a commercial dock operation is conducted as set forth in Paragraph G (2) below.

(3) Public and private marinas.


(4) Annual or private membership clubs providing private playgrounds, swimming pools, tennis courts, marina and boat launch facilities, related recreational buildings. [See City of Hudson (NY) Zoning Law section 325-7, Paragraph B (3).]10

(5) Railroad, public utility, radio and television transmission and receiving antennas, rights-of-way and structures necessary to serve areas within the [city/town/village].

(6) Multiple dwellings, hotels (not including rooming houses and boardinghouses) and motels.

(7) Telecommunications towers as provided for [insert section number and title for zoning provisions addressing telecommunications facilities].

(8) Eating and drinking places.

E. Accessory uses. Customary and accessory uses, including off-street parking as regulated in [insert section number and title for parking regulations], permitted accessory uses as provided for in [insert section number and title for accessory use section of the one-family residential district or include list here] and signs as regulated in [insert section number and title for supplementary sign regulations]. [Note that the City of Hudson provides for customary home occupations, professional offices or studios, private garages or carports, and household pets.]

F. Dimensional Standards. Dimensional standards for the Riverfront District are: [e ither provide a table as illustrated below or refer to a schedule of dimensional standards. The table below is based on the City of Hudson law. Consider adding a percentage for maximum impervious surface coverage; see discussion in section 1.2.3 Maximum Lot Coverage.]

District Riverfront DistrictMinimum Required:

Lot area:Total 6,000 square feetPer dwelling unit 1,000 square feet

Lot width 100 feetLot depth 100 feetFront yard 10 feetEach side yard 10 feetRear yard 20 feetUsable open space per dwelling unit 400 square feetOff-street parking spaces per dwelling unit 1

Maximum Permitted:Lot coverage 30%Building height:

Number of stories 3Feet 35 feet

Building length (feet) -


Walls intersecting at an interior angle of more than 135° shall be considered one building wall. To be considered as a separate wall, any break in said plane shall have a minimum length and depth of at least 60 feet.

The Planning Board may approve a front yard setback that conforms with the prevailing building setback for the respective street on which a property is located.

G. Standards for special uses.

(1) For all uses allowed by special use permit, where the subject property abuts the water, the Planning Board shall consider the quality and extent of views from the adjacent public streets through the property to the water as well as the design and relationship of development to the waterfront as viewed from the water.

(2) Standards for commercial dock operations (including private roads providing ingress and egress to the commercial dock operations):

(a) Emissions of dust, smoke, gas, odor or air pollution, or by reason of the deposit, discharge or dispersal of liquid or solid wastes in any form in a manner or amount as to cause permanent damage to the soil or waters shall not adversely affect the surrounding area or create a nuisance. See [insert section number and title of zoning section that prohibits uses in all districts].

(b) In order to minimize nuisance noise from loading dock operations to residential receptors and nearby uses, noise shall be kept within the limits established in [insert section number and title of zoning section that regulates noise]. Control measures may include, as the Planning Board deems appropriate, the placement of noise-attenuating barriers and landscaping around loading docks.

(c) Loading or unloading operations at the docks and truck arrivals and departures shall be limited to the hours of 7:00 a.m. to 7:00 p.m. This limitation shall not apply to on-water operations by tugboats and barges.

(d) Truck engine idling is prohibited at loading docks.

(e) Artificial lighting facilities of any kind with light sources visible beyond the lot lines or which create glare beyond such lines are prohibited pursuant to [insert section number and title of zoning section that prohibits uses in all districts], subject to lightening devices deemed necessary for the public safety and welfare by federal, state or [city/town/village] authorities.

(f) Visual impacts associated with such operation shall be minimized. Corridors from a public street or tract of land that provide a direct and unobstructed view to the water from a vantage point within a public street, public park or other


public place shall be protected wherever possible. Outdoor storage of goods and raw materials shall be screened from the public view to the greatest extent possible.

(g) As far as practical, public access to and along the river shall be incorporated into site designs for conditional uses but shall not substantially interfere with the established uses on the property.

(h) In areas of annual flooding, floodplains and wetlands shall be preserved in their natural state to the maximum possible extent practicable to protect water retention, overflow and other natural functions.

(i) Loading and unloading operations at the docks shall be conducted in a manner designed to minimize adverse effects on water quality, fish and wildlife, vegetation, bank stabilization, water flow, and permitted uses on adjoining property.

(j) Construction, reconstruction or resurfacing of and other improvements to the dock operations (including private roads providing ingress and egress to the commercial dock operations) shall be performed in a manner which preserves natural features and drainways, minimizes grading and cut and fill operations, ensures conformity with natural topography, and retains natural vegetation and vegetative buffers around water bodies to the maximum extent practicable in order to prevent any increase in erosion or the volume and rate or velocity of sedimentation or surface water runoff prior to, during, and after site preparation and work.

(3) Standards for a private causeway or private road that provide ingress to or egress from the property upon which a commercial dock operation is conducted include in areas of annual flooding, floodplains and wetlands shall be preserved in their natural state to the maximum possible extent practicable to protect water retention, overflow and other natural functions.

(4) Special conditions for public and private marinas include the following:

(a) Docks and moored vessels must be situated so as not to interfere with the free and direct access to such waters from the property, wharf, dock or similar structure of any other person unless written permission is obtained therefor from such other person.

(b) Any application for a dock to be constructed at the end of a right-of-way will require written consent from all parties having an interest in the right-of-way.

(c) All docks 50 feet or longer in length must be equipped with a U.S. Coast Guard approved regulatory navigation light at the seaward end of the dock facility.


(d) As far as practical, public access to and along the river shall be incorporated into site designs for marinas.

(5) Special conditions for multiple dwellings, motels and hotels include the following:

(a) The design, scale, and appearance of units, structures, and the entire facility shall be compatible with present and potential uses of adjacent properties and structures.

(b) The size, scale or configuration of a proposed facility must be found not to create an undue increase in traffic congestion on adjacent and nearby public streets or highways.

(c) Structures and outdoor activities will be reasonably screened from adjacent properties. Landscaping and buffer zones will be provided to reduce noise, dust, and visibility.

(d) Outdoor lighting shall be contained on the site and shielded to assure that lighting is not visible from neighboring lots.

(e) There shall be no outdoor public address or music system audible beyond the limits of the site.

(f) The number of guest rooms may be limited to the availability of public water and sewage facilities.

(6) Special conditions for eating and drinking places include the following:

(a) There shall be no outdoor public address or music system audible beyond the limits of the site.

(b) The maximum customer capacity of the restaurant shall be calculated in order to determine potential sewage and kitchen waste disposal. A plan demonstrating how the disposal of sewage and kitchen wastes will be handled shall be provided.

(c) Structures and outdoor eating areas will be reasonably screened from adjacent properties. Landscaping and buffer zones will be provided to reduce noise, dust, and visibility.

(d) Outdoor lighting shall be contained on the site and shielded to assure that lighting is not visible from neighboring lots.

G. Salt storage. The stockpiling or storage of road salt is not a permitted, conditional or accessory use.


1.1.2 Waterfront Overlay District

An overlay district is a district of any shape or size that is superimposed over the underlying “base” zoning district(s) to protect a resource (e.g., a river or historic area), address a special problem, or guide development within a special area. The overlay district essentially adds a layer of safeguards, standards or incentives that may not have been considered for the base zoning uses. The base zoning requirements still apply but overlay district standards apply in cases where the base and overlay requirements conflict.

Shown below is an excerpt from the Town of Saugerties zoning map, which shows several different overlay districts, including a Waterfront Overlay Zone along the Hudson River. The district, represented by the area within the blue slashes, overlays several districts like the Low Density Residential (LDR), Residential Hamlet (RH), and High Density Residential (HDR) districts.11


Waterfront overlay districts can be designed to protect waterfront property for the community, promote high quality development sensitive to the unique environmental resources and enhance public enjoyment and use of the waterfront by having additional requirements for review and approval of site plans. These requirements are based around ensuring that all development is done in a way that protects the waterfront for public use while protecting private and public property to the extent possible. This is can be done by looking at current master plans, zoning and public vision.

The purpose of the following waterfront overlay district example is to protect and enhance the shoreline with a focus on improving water quality and preventing erosion. In the example below, a buffer strip is required to reduce soil erosion and runoff. A waterfront buffer might be larger.

RESOURCES

Guidance on Natural Resiliency Measures.12

USAGE

Identify the area(s) of the municipality that would be included in the Waterfront Overlay District and prepare a map showing those areas as an overlay to the municipal zoning map. Amend the section of the zoning law establishing zoning districts to include the new overlay district and amend use and dimensional standards to include requirements related to the new zoning district.


Town of Saugerties (NY) Municipal Code, Chapter 245 Zoning, Article VI General Regulations, Section 245-26 Waterfront Overlay District13

LANGUAGE

Section X. Waterfront Overlay District

A. Purpose. The purpose of this district is to protect and enhance the shoreline, through protecting water quality and preventing erosion along the [_____River/Creek/Lake] within the [Town/Village/City of __________], by allowing property owners to enjoy their property and access to the waterfront while protecting the environmental and scenic quality of the shoreline from degradation. To further this purpose, this section establishes criteria to be followed by applicants in the design of projects and to be followed by the Planning Board as part of the site plan approval process as set forth in [insert zoning section]. All development in the Waterfront Overlay District will be reviewed on a case-by-case basis via the site plan review process to ensure appropriate layout and design of all properties.

B. Applicability and location.


(1) The Waterfront Overlay District is superimposed over the basic zoning districts as set forth on the [town/village/city] Zoning Map. The regulations presented in this section shall only apply to those lands located within the boundaries of the Waterfront Overlay District as overlaid on the [town/village/city] Zoning Map. In such overlay district, proposed land uses are subject to the requirements set forth in this section, in addition to those requirements and standards ordinarily applicable to the underlying district. In case of conflict, the more restrictive regulation requirements shall apply.

(2) The following areas of the [town/village/city] are hereby designated as Waterfront Overlay Districts: properties or portions of properties located within [insert number of feet, such as 1,000] feet of the [_____River/Creek/Lake]’s mean-high-water mark. If any portion of the property is located within the boundaries of this overlay district, the entire property is subject to the regulations set forth in this section.

C. Effect on Schedule of Uses. All uses in a Waterfront Overlay District shall be subject to the site plan approval process, as set forth in [insert chapter or section number for site plan review]. As such, the Schedule of Uses is modified in this respect for lands contained in a Waterfront Overlay District.

D. Effect on Schedule of District Area and Bulk Regulations. All uses in a Waterfront Overlay District, except water-dependent uses, including docks, boathouses and storage sheds for water-related uses, shall have a minimum [insert number of feet, such as 150] feet setback from the mean-high-water mark.

E. Waterfront Overlay District standards. In addition to the standards set forth throughout this chapter, the following site plan review standards shall apply throughout a Waterfront Overlay District:

(1) General standards.

(a) There shall be no clear-cutting of trees. In addition, measures will be taken to protect and preserve as much mature vegetation as possible on the site, including but not limited to trees of six inches in diameter or more measured at 4 1/2 feet above grade.

(b) There shall be no destruction, damage or modification of, or interference with, the natural, scenic, topographic or physical features of the site.

(c) Landscaping and setbacks shall protect and be compatible with local and regional scenic quality, adjacent fish and wildlife habitats, freshwater wetlands and coastal waters.

(d) Structure height and bulk shall not detract from the natural topography and natural visual quality of the local area or region and shall be compatible with the site and the adjacent sites.


(e) Any new on-site sewage disposal systems must comply with [cite applicable standards, such as the county health or New York State Department of Health standards].

(f) Outdoor lighting shall be shielded to prevent glare hazard on the waterfront and adjacent properties.

(g) Existing trails shall be retained whenever possible.

(2) Shoreline vegetative buffer.

(a) Shoreline buffer strips of no less than [insert number of feet, such as 100] feet in width from the mean-high-water mark are required. Buffers shall consist of trees and shrubs for purposes of preserving the natural and aesthetic quality of the shoreline, protecting against shoreline erosion, providing a filter strip for stormwater runoff, and providing wildlife habitat.

(b) No more than [insert percentage, such as 30%] of vegetation within the buffer may be thinned during any five-year period. Thinning may be done to provide views of the water, but mature trees shall remain. Property owners may raise the tree canopy by trimming lower branches or top trees to slow growth to maintain their views of the [__________River/Creek/Lake].

(c) The property owner may remove mature trees only if such trees are diseased or damaged. Such trees shall be replaced with appropriate species that will help protect water quality and prevent erosion.

(d) In the event that the shoreline is already cleared, such as former cropland, a buffer strip consisting of native vegetation that will help protect water quality and prevent erosion shall be reestablished.

(e) Limited access to the [river/creek/lake] may be created by a contiguous clear-cut opening in the buffer strip that does not exceed [insert number of feet, such as ten] linear feet in width. The pathway created should be constructed or surfaced to be effective in controlling erosion.

(3) Properties on steep slopes. The following standards shall apply to steep slopes (areas of greater than [insert percent of grade, such as fifteen] percent grade) at or near the water's edge that exceed fifteen feet in elevation measured from the high-water line or bottom of the slope, whichever is higher, to the top of the slope. "At or near the water's edge" shall mean within thirty feet of the mean-high-water mark.

(a) Building setbacks from the shoreline as specified herein shall be measured from the edge of the steep slope.


(b) No construction shall take place within [insert number of feet, such as one hundred] feet of the top edge of the steep slope. No land clearance or grading involving motorized equipment shall take place within [insert number of feet, such as one hundred] feet of the top edge of the steep slope.

(c) No vegetation shall be removed from the steep slope.

(d) Stairways or walkways constructed on the steep slope shall require a special use permit from the [Planning Board/Zoning Board of Appeals].


1.1.3 Waterfront Bluff Overlay District One consequence of sea level rise and increased precipitation is the accelerated rate of erosion along beach or river bluffs. Historically, the nation’s shorelines have been receding at an average rate of slightly more than 1 foot per year,14 but local rates vary tremendously.

Municipalities may develop an overlay district where additional regulations are layered over the underlying district in an area along a waterfront bluff. The district can require buffers that will address current and future risk. Buffers can restrict the location of structures and protect the bluff from erosion due to the consequences of development such as clear-cutting and runoff. Buffers can ensure new structures are set back far enough inland from the bluff edge such that they will not be endangered by erosion over the life of the structure and will not drive the use of a hardening shoreline protective measures.

The Town of Lloyd (NY), home to the Walkway Over the Hudson, adopted a Waterfront Bluff Overlay District local law which emphasizes protection of the views to and from the bluff, while also protecting water resources and addressing erosion control. To reduce the number of structures perched at the edge of the bluff, the law provides close review of proposed development and minimization of vegetation removal. The law restricts cutting of trees with a diameter greater than 18 inches at 4 1/2 feet above grade, but communities could improve resiliency by preserving trees with an even smaller diameter.

USAGE

Identify the area(s) of the municipality that would be included in a waterfront bluff overlay district and provide a map showing those areas as an overlay to the municipal zoning map. Amend the section of the municipal zoning law which established zoning districts to include a new overlay district. See the Town of Lloyd overlay district for language related to other standards, requirements, and enforcement provisions.

Amend other sections of law as necessary to reflect the existence of the new overlay district, such as the definition section, bulk standards, and use standards. Supplement this law with additional restrictions from cutting trees greater than a specific diameter, as well as standards related to stormwater drainage.

Amend the general requirements section of the subdivision law to mention conformity to the overlay district provisions.

LOCAL LAW ADAPTED AS A MODEL

Town of Lloyd (NY) Municipal Code, Chapter 100 Zoning, Article V Overlay and Other District Regulations, Section 100-25 Waterfront Bluff Overlay District15 and Chapter 90 Subdivision of Land, Section 90-3 General Requirements16

LANGUAGE


Add the following definitions to the list of zoning definitions in the municipal code:

Bluff Line - The bluff line is hereby defined as the line at the top bluff, cliff or steep slope rising from the [insert name] River shoreline or at the upper elevational limit of a slope of 20% or more above the [insert name] River shoreline.

Erosion Protection Structure - A structure specifically designed to reduce or prevent erosion such as a groin, jetty, revetment or breakwater or artificial beach nourishment project.

Add the following to the zoning regulations:

Section X. Waterfront Bluff Overlay District (WBOD)

A. Authority and purpose.

(1) These regulations are enacted under the authority of §10 of the Municipal Home Rule Law, [Article 2-A of the General City Law/Article 16 of the Town Law/Article 7 of the Village Law] and Article 42 of the Executive Law of New York State, in order to protect and enhance the physical and visual environment of the [City/Town/Village of ____] and for the protection, order, conduct, safety, health and well-being of people and property within the [City/Town/Village].

(2) The Waterfront Bluff Overlay District is hereby established. It is the purpose of the Waterfront Bluff Overlay District (WBOD) to afford priority to waterfront-compatible, well-designed uses and to control development in ways that protect and enhance the [insert name] River waterfront's natural, scenic and cultural resources. Further, it is the purpose of the WBOD to protect and preserve sensitive environmental areas; prevent soil erosion, sedimentation and slope failure due to removal of vegetation; protect and enhance, to the maximum extent possible, the scenic qualities of the [City/Town/Village]’s waterfront area by maintaining, creating and continuing the vegetative corridor of the [insert name] River region; prevent, to the maximum extent possible, the loss, alteration or diminution of public view of the [insert name] River and opposite shore; prevent activities which will cause water pollution; and to implement the policies and purposes of the [City/Town/Village of ____] comprehensive plan [if the community has a local waterfront revitalization program, substitute Local Waterfront Revitalization Program in place of comprehensive plan]. Further, it is the intent of the [City/Town/Village of ____] to protect and preserve the scenic resources of the [City/Town/Village], to ensure that the benefits provided by the [insert name] River views will not be lost for present and future generations and to protect the broader public interest.

(3) The WBOD regulations are to be superimposed on the primary zoning district provisions and should be considered as additional requirements to be met by the applicant or developer, prior to project approval. If there should arise a conflict between


the provisions of the WBOD and the provisions of the underlying zoning district, the more restrictive shall apply.

(4) Regulated land use activities proposed in the WBOD, as defined by Chapter [insert number] of this Zoning Law, shall require site plan review and approval by the [City/Town/Village of ____] Planning Board, pursuant to the provisions of the WBOD and all other applicable sections of this Zoning Law. [If the community has a local waterfront revitalization program, add: The Planning Board will at the same time review the proposed use for consistency with the policies and purposes of the Waterfront Revitalization Program, pursuant to specific provisions of the Waterfront Consistency Review Law.]

B. Location, boundaries and maps.

(1) The location and boundaries of the [City/Town/Village of ____] Waterfront Bluff Overlay District shall be delineated on the Official [City/Town/Village of ____] Zoning Map on file in the [City/Town/Village] Clerk's office and the [City/Town/Village] Building and Zoning Department.

(2) The [City/Town/Village of ____] Waterfront Bluff Overlay District shall be mapped as that area from [insert description of area].

C. Permitted uses. All uses permitted in the underlying zoning district are permitted in the WBOD, subject to applicable standards of the underlying zoning district and of the WBOD and subject to site plan review and approval.

D. Regulated activities. No person shall conduct any of the following regulated activities within the WBOD, unless such person has first applied for and obtained site plan approval by the Planning Board in accordance with the provisions of the WBOD and in accordance with all applicable provisions of the underlying zoning district. Other permits may be necessary from state or federal agencies pursuant to requirements of other state and federal laws.

(1) Construction of new residential structures or structural additions to or modifications of existing residential structures. This shall not include interior alterations, or normal and routine maintenance and repair of existing structures, provided that the use does not change.

(2) Construction of all new nonresidential structures or structural additions to existing nonresidential structures.

(3) A significant and substantial change in use of an existing nonresidential structure. A significant and substantial change in use shall be deemed to have occurred if there is:

(a) Any change in use affecting 2,000 or more square feet of an existing nonresidential structure;


(b) An increase of 50% or more in total square footage of an existing nonresidential structure;(c) An increase of 50% in water and sewer demand;(d) An increase of 50% in the generation of solid wastes;(e) An increase of 50% in required parking; or(f) Potential use of hazardous materials.

(4) Construction or placement of any new on-site sewage disposal system, including individual sewage disposal systems, septic tanks, septic drainage or leach fields.

(5) Filling or excavating activities in excess of 200 cubic yards of material.

(6) The cutting down of any trees over [insert diameter of tree, such as 12 inches] in diameter measured 4 1/2 feet above the base of the tree on any property within the district. Also included shall be any tree and vegetative clearing and removal activities that either directly or indirectly will cause soil to be exposed and subject to erosion. This shall not include normal and routine tree and shrub care and maintenance, including removal of only dead trees and vegetation.

(7) Discharge of stormwater associated with human activity and/or construction and placement of stormwater runoff systems.

(8) Permanent outside storage of materials and equipment on property within the district. This shall not include normal accessory residential storage activities.

(9) Construction of vehicular public or private roads, trails and bridges.

(10) Construction of docks, boat launching facilities and fishing facilities, including associated parking areas.

(11) The construction, modification or restoration of erosion-protection structures within the district.

E. Exempt activities. The following activities are exempt from the provisions of the WBOD:

(1) Lawn care and maintenance.

(2) Home gardening activities.

(3) Normal and routine tree and shrub care and maintenance, including removal of dead vegetation. However, this shall not include any tree and vegetative clearing and removal activities that either directly or indirectly will cause the soil to be exposed and subject to erosion.

(4) Removal of structures.


(5) Repair and maintenance of existing structures.

(6) Replacement, repair and maintenance of faulty or deteriorated on-site sewage disposal systems, including individual sewage disposal systems, septic tanks, septic drainage or leach fields.

(7) Commercial agricultural activities, except those activities involving the construction or reconstruction of structures or the cutting down of any trees over [ insert diameter of tree, such as 12 inches] in diameter measured 4 1/2 feet above the base of the tree. However, this shall not include any tree and vegetative clearing and removal activities that either directly or indirectly will cause the soil to be exposed and subject to erosion.

(8) Any actual or ongoing emergency activity which is immediately necessary for the protection and preservation of life, property or natural resources.

F. Development standards and review procedures during site plan review.

(1) General provisions

(a) Applications for site plan approval within the WBOD shall be made in writing to the Planning Board on forms available in the Planning Board office. Such an application shall be signed by the property owner and may be made by the property owner or his/her agent and shall be accompanied by any materials or information deemed appropriate by the Planning Board, including but not limited to all of the information required by the site plan review provisions and the following additional information, specific to the WBOD:

[i] The location of all existing and proposed impervious surfaces such as roads, driveway, sidewalks, etc., on the property or within 100 feet of the proposed work site.

[ii] Existing and proposed contour levels for the property at two-foot contour intervals within 100 feet of the proposed work site or within the property limits. For purposes here, the term "work site" shall be defined as that area for which human disturbance activities are proposed.

[iii] The location of all proposed waterfront public access/recreation provisions, if applicable.

[iv] The location and types of all existing and proposed tree, shrub and vegetation masses, as well as all trees with a diameter of [ insert diameter of tree, such as 12 inches] or more, measured 4 1/2 feet above the base of the tree within 100 feet of the work site or within the property limits.

[v] The location of fire and other emergency zones, including the location of the nearest water supply for fire emergencies.


[vi] For all new structures proposed, except accessory structures, a comprehensive scenic landscape protection report shall be provided. Such report shall include, at a minimum, information about existing and proposed vegetation, color of structures and landscaping proposed in order to protect, enhance and continue the vegetative corridor of the [insert name] River region. Color of structures and landscaping shall be an integral part of the report. The report shall include but not be limited to the following:

1. A detailed narrative description, with accompanying maps, sketches, photographs, simulations, etc., of how the proposed development or activity will provide a scenic buffer and blend into the landscape of the WBOD. Such information shall include a description of existing and proposed vegetation, proposed color of structures and proposed landscaping. The types of information that shall be included in this report are: a general description of the condition of existing trees and vegetation; the general location, size and species of trees to be preserved, and those to be removed; and the general location, size and species of proposed trees and other vegetation to be planted.

2. The report shall describe in a detailed narrative, and accompanied by any other pertinent maps, drawings or similar information, how the proposed development will be consistent with the scenic elements and aesthetic significance of any areas of Scenic Areas of Statewide Significance (19 NYCRR Part 602).

3. The report shall address the functional aspects of landscaping such as ongoing maintenance, drainage, erosion prevention, wind barriers and reduction of glare. Any plant material proposed shall be selected for its ability to survive the climate in the region, its structure, texture and color and for its ultimate growth. Plants that are indigenous to the area and others that will be hardy, harmonious to the design and of attractive appearance should be selected.

[vii] The location, design and size of all signs and lighting facilities.

[viii] The approximate locations and dimensions of areas proposed for neighborhood parks, playgrounds and other permanent open space.

[ix] Description and location of erosion control measures including proposed location of sediment sink/settling ponds and interceptor swales, etc.


[x] The location and design of all stormwater management facilities.

[xi] A drainage report including supporting design data and copies of computations used as a basis for the design capacities and performance of closed drainage facilities.

[xii] Record of application and approval status of all necessary permits from federal, state and county officials.

[xiii] A completed SEQR visual environmental assessment form.

(2) Development standards. Site plan approval to undertake any regulated activity within the WBOD shall not be issued by the Planning Board unless the applicant can adequately demonstrate to the Planning Board's satisfaction that:

(a) To the extent possible, structures, storage and parking areas shall be set back from the identified [insert name] River bluff ridgeline to reduce opportunities for erosion, sedimentation and slope failure and to protect the scenic qualities of the waterfront area by maintaining, creating and continuing the vegetative corridor of the [insert name] River region. Structures proposed below the bluff ridgeline shall make use of natural vegetation and topography and shall be designed in such a way as to enhance visual, scenic and cultural character of the [insert name] River waterfront area.

(b) The proposed land use activity will avoid excessive or unnecessary grading, indiscriminate earthmoving or the clearing of property and removal of trees and vegetation which would disfigure natural land forms.

(c) As appropriate to the type of proposed land use activity, the scenic landscape protection buffer measures should protect and enhance, to the maximum extent possible, the scenic qualities of the WBOD area, and the Scenic Areas of Statewide Significance by maintaining, creating and continuing the vegetative corridor of the [insert name] River region. While complete vegetative screening is not required, sufficient plant material shall be provided to protect, enhance and continue the vegetative corridor of the [insert name] River region.

(d) All proposed buildings and structures are to be clustered together to the maximum extent possible, where appropriate, and depending on the nature of the proposed activity, to ensure that the surrounding visual/natural environment is maintained as much as possible, to retain the quality and extent of view from adjacent public streets through the property to the [insert name] River, to save open space and to provide visual organization to the development.

(e) Excavations or cuts made to the steep slope associated with a bluff shall only be permitted where such activities involve bluff cuts made in directions that take advantage of the natural contours of the land or are at oblique angles to the


shoreline in order to minimize erosion, control runoff and protect scenic resources. Side slopes and other disturbed on-roadway areas must be stabilized with vegetation or other approved physical means. Completed paths, accessways or roadways must be stabilized and appropriate drainage provided. [Note: the source law describes steep slopes as those with 15 percent gradient or greater. A municipality may wish to further restrict development of steep slopes. See Chapter 5 Stormwater Control Measures.]

(f) Plants or other acceptable ground cover shall be reestablished in disturbed areas immediately upon completion of development activity so as to prevent uncontrolled erosion or slipping of soil or cause sediment to be discharged into the [insert name] River, wetlands or into the tributaries, or both, and in order to maintain the natural resource and scenic characteristics of the [insert name] River coastal area.

(g) Additional stormwater drainage associated with proposed construction (during and after construction) shall not cause erosion or siltation, contribute to slope failures, pollute surface waters or cause damage to or flooding of property. Drainage systems shall be designed and located to ensure slope stability. Best management practices shall be used to prevent erosion and the introduction of runoff contaminants from entering the waters within the WBOD.

[i] Runoff or other nonpoint pollutant sources from any specific development activity must not be greater than would be the case under natural conditions. Appropriate techniques to minimize such effects shall include but not be limited to the use of stormwater detention basin, rooftop runoff disposal, rooftop detention, parking lot and impervious surface storage and cistern storage systems.

[ii] Natural ground contours should be followed as closely as possible and grading minimized.

[iii] Extreme care should be exercised to locate artificial drainageways so that their final gradient and resultant discharge velocity will not create additional erosion problems.

[iv] The amount of time that disturbed ground surfaces are exposed to the energy of rainfall and runoff water should be limited.

[v] Natural protective vegetation should remain undisturbed if at all possible; otherwise, plantings should compensate for the disturbance.

[vi] The velocity of runoff water on all areas subject to erosion should be reduced below that necessary to erode the materials.


[vii] Sufficient ground cover should be applied to restrain erosion on that portion of the disturbed area undergoing no further active disturbances.

[viii] Runoff from a work site should be controlled to avoid transportation of sediment from the site.

[ix] The angle for graded slopes and fills should be limited to an angle no greater than that which can be retained by vegetative cover or other erosion control devices or structures.

[x] The length, as well as the angle, of graded slopes should be minimized to reduce the erosive velocity of runoff water.

(h) Any new parking lot or area, road, trail or bridge shall be so located, designed and constructed so as to minimize its visibility from the river and minimize alteration or destabilization of the soils.

Add the following to the general requirements section of the subdivision regulations:

X. Conformity to Zoning Code, Official Map and Comprehensive Plan. Subdivisions shall conform to the roads and parks shown on the Official Zoning Map of the [City/Town/Village]. Additionally, subdivisions shall be designed to ensure that subdivision development, including but not limited to the construction of dwellings and the roads therein, complies with the standards of the Waterfront Bluff Overlay District, properly conforms to the requirements of the [City/Town/Village] Zoning Code and shall be consistent with the Comprehensive Plan.


1.1.4 Transfer of Development RightsTransfer of Development Rights, or TDR, is a land use regulation technique that can be used to advance the open space goals of the municipality without causing a financial burden to landowners or restricting needed development. The Department of State Transfer of Development Rights publication describes TDR as a zoning technique designed to preserve or protect natural or man-made property resources for the public’s benefit.17 “A well thought out and administered TDR program ultimately generates development that is more cost-effective and efficient. The use of TDR reduces the prospect of litigation over preservation policies; it avoids the use of municipal funds to purchase land while helping to ensure preservation goals; importantly, it means that the municipality can increase its tax base but does not have to settle for less preservation than it really wants.”18

“In essence, TDR permits all or part of the density potential (established in the local zoning law or ordinance) of one tract of land to be transferred to a noncontiguous parcel or even to land owned by someone else. The development rights become a separate article of property, which can be sold to a landowner whose property is better suited to greater densities. After selling the development rights, a landowner still retains title and all other rights to his land. These other rights permit farming, forestry, some recreational uses, and other non-intensive uses. In addition, the owner may sell or exchange the title to the land just as if the development rights had not been transferred.”19 While the intent is very broad, TDR for natural resource protection means that development is prohibited on the designated property, but allowed in a more suitable location, in order to preserve open space and/or protect a natural resource that provides a valuable service, such as flood risk reduction.

“TDR involves attaching development rights (the right to develop land) to specified lands desired by the municipality to be kept ‘undeveloped’ and permitting these rights to be transferred from that land, so the development they represent may occur somewhere else. The rights are considered severable for the land ownership so that they may be sold. The ‘somewhere else’ would be lands for which more development and higher density would be acceptable.”20

When developing a local transfer of development rights law, the municipality will need to consider the overall land use policy of the community when designating both sending districts and receiving districts, as well as the potential environmental impacts of TDR. In addition, state statutes require municipalities to avoid creating a negative impact on the potential for development of low- or moderate-income housing as a result of TDR.

There are several variations of TDR programs. No variation has been singled out as a model for this chapter. For municipalities interested in TDR, keep in mind that local laws adopted in other states may not meet the requirements of the statutes in New York State. Also, many examples of TDR laws from communities on Long Island were adopted to implement the 1993 Long Island Pine Barrens Act.


Local TDR laws adopted by a New York State municipality will be highly specific to the needs, desires, and capacity of the municipality adopting it. The following are examples of communities in New York State with TDR Laws. Others may also exist.

Town of Riverhead, adopted in 201821

Town of Lysander, adopted in 2008 and repealed in 2015.22

Town of Warwick, adopted in 200823

Town of Clifton Park, adopted in 200524

Town of Eden, adopted in 197725

RESOURCES

Transfer of Development Rights. (2010). New York State Department of State. 26

Fact Sheet: Transfer of Development Rights. (2001). American Farmland Trust.27

Siders, A. Managed Coastal Retreat: A Handbook of Tools, Case Studies, and Lessons Learned. (2013). Columbia Center for Climate Change Law Columbia Law School.28

Otto, K. Smart Growth through the Transfer of Development Rights. (2010). New Jersey.29


1.2 Height, Bulk, and Area RegulationsHeight, bulk, and area regulations control the size and placement of structures on a building lot, as well as the dimensions of the lot itself. By controlling those factors, municipalities set the development capacity of designated areas. The following table is a summary of the techniques illustrated in this section that can be used to control development, with a goal of making the community more resilient to the effects of increased flooding and the effects of impervious surfaces, runoff, and pooling water.

Tool Context

Minimum Lot Size

In flood-prone areas, it may be desirable to establish a higher minimum lot size to reduce the number of building lots that may be created, providing greater area for natural systems to process stormwater and reduce flood risk. This approach would ideally be combined with maximum lot coverage standards.

Maximum Building Height

Allows an increase in the maximum building height (with restrictions on ground-level uses) for buildings in a district where building elevation is necessary due to flood risk, enabling property owners to elevate existing buildings without the need for a zoning variance. Can also be used where a community implements a higher design flood elevation to allow new construction to accommodate the same amount of square footage as a non-elevated building that complies with prior maximum building height.

Maximum Lot Coverage

Specifies that the calculation of percentage of lot coverage includes impervious surfaces like driveways, accessory structures, and pools that can contribute to stormwater runoff.

Setbacks

Requires setbacks from water courses and water bodies in order to preserve shorelines and protect development from flooding, coastal storm surges, and sea-level rise. See examples in the Coastal Shoreline Protection Measures chapter.


1.2.1 Minimum Lot SizeReducing development in flood-prone areas allows the natural landscape to absorb more floodwaters, reducing flood damage to structures and human life and providing a natural storm protective buffer. Through the zoning enabling statutes, local governments have the authority to limit development in the floodplain on the basis of risk to health, safety and welfare. For example, it may be desirable to have larger minimum lot sizes in some zoning districts to reduce the number of building lots and to protect natural resources which process stormwater runoff and reduce flood risk. Combining minimum lot size with additional zoning regulations, such as limits on the number of principal uses or a cap on maximum lot coverage, enhances the goal of limiting risk to persons and property.

Minimum lot size is established in the zoning law for each zoning district and is part of the calculation of buildable land for subdivision purposes. As minimum lot size is increased, the number of building lots allowed in a subdivision will decrease. Because larger minimum lot sizes can contribute to sprawl, cluster or conservation subdivision are alternative approaches to consider for some areas of a community. (See Section 1.5.7 of this chapter for more information.)

In addition to requiring conformance with zoning, planning boards are also charged with ensuring lots on a subdivision plat can be used safely for building purposes without danger to health or peril from flood, drainage or other hazards. (See Section 1.5 of this chapter for more information.) In fulfilling this duty, planning boards may require lots on subdivision plats to be larger than the minimum required by zoning in order to safely accommodate development.

USAGE

Amend the general standards and requirements provision of the subdivision law to include a statement relating to the need for buildable areas where the subdivision includes lots in the floodplain.

Amend the dimensional regulations of the municipal zoning law as they relate to the floodplain district.


City of Middletown (CT) Municipal Code, Section 46 Flood Area Managements Regulations, Section 46.06 Design Standards for Subdivision Proposals, Section 46.06.0730

Town of Wheatland (NY) Municipal Code, Chapter 130 Zoning, Article II Zoning Map; District Regulations, Section 10-11 Floodplain and Residence Districts: Table of Dimensional Regulations31

LANGUAGE


Amend the general standards and requirements section of the subdivision law:(X) All subdivision proposals shall be consistent with the need to minimize flood damage. All proposed lots shall have a minimum buildable area outside the natural (non-filled) 100-year floodplain. The buildable area shall be large enough to accommodate any primary structures and associated structures such as sheds, barns, swimming pools, detached garages, on-site sewerage disposal systems, and water supply wells, if applicable.

Amend the District Regulations – Area Schedule in the zoning law.

Floodplain and Residence Districts: Table of Dimensional Regulations

Dimensional Provisions Flood Hazard District (F-1)

Lot area, minimum 5 acresLot coverage, percent of total area occupied by main and accessory buildings

1 percent

Lot width, minimum 300 feetFront Yard, minimum as measured from the street line 100 feet

Side Yard, minimum for one 50 feet

Side Yard, total for both on interior lot 100 feetSide Yard abutting side street on corner lot, minimum 100 feet

Rear Yard, minimum 50 feet

Where public sewers are not available, no lot shall be built upon which has insufficient space for a private sanitary waste disposal system, as determined by the [insert name of applicable health department].


1.2.2 Maximum Building HeightZoning laws typically establish a maximum building height based on the use or district in which the structure will be located. The height selected might factor into the availability of firefighting equipment, the circulation of air, access to sunlight, neighborhood character, protection of views, and impact on building density. Allowing taller buildings while limiting lot coverage is a way to maintain density and provide increased building square footage without increasing building footprints and the amount of impervious surfaces. Less impervious surface will reduce stormwater runoff, which contributes to flooding.

Following Superstorm Sandy in 2012 and other recent weather events, many municipalities received requests for permits to reconstruct buildings that were significantly damaged due to storm-related flooding or other hazards. Reconstruction in many areas involves elevation of the structure to comply with the building code and to reduce federal flood insurance premiums; however, elevation in compliance with the building code could result in a violation of the height restrictions of the zoning district, thus requiring homeowners to seek height variances from the zoning board of appeals.

The Town of Islip (NY) found that homeowners seeking to elevate their homes after Hurricane Sandy often required height variances from the Town of Islip zoning board of appeals. Height measurements at the time were taken from the ground level, which were often below FEMA’s


flood lines. To address this, the Town of Islip amended the zoning law to relax height restrictions on dwellings located in FEMA-designated Special Flood Hazard Areas.

To address the potential burden on storm-damaged property, and to encourage pro-active elevation to avoid future storm damage, a municipality could provide for taller structures through an increase in height restrictions; a change in the way height is calculated; or a reclassification of buildings that will need elevation as legal non-complying buildings after the elevation.

RESOURCES

Engineering Principles and Practices for Retrofitting Flood-Prone Residential Structures. (2012). FEMA P-259.32

USAGE

Add to the general provisions of the municipal zoning law an explanation of how to determine the building height of a single-family residence and any accessory structures in areas of special flood hazards. Select one of the two options provided to complete the explanation.


Town of Islip (NY) Municipal Code, Chapter 68 Zoning, Article 1 General Provisions, Section 68-333

LANGUAGE

Building Height, Single-Family Residence. Unless otherwise stated, the building height for any single-family residence and any structure(s) accessory thereto is the vertical distance from the average grade of the ground at the base of the structure, or the average grade at the street, whichever is less, to the highest point of the roof, provided that chimneys, spires and similar permitted projections shall not be included in the height. Within an area of special flood hazard as defined by the [City/Town/Village of _______] Flood Damage Prevention Law, building


BUILDING RELOCATION

In the context of sea level rise and flooding, the maximum height allowed can impact the cost or degree of difficulty of reconstruction of a storm damaged structure, the cost of relocation, and the amount of stormwater runoff. Smaller homes face fewer obstructions than larger or taller ones that could require detour around overpasses or the raising of utility lines, increasing the cost of relocation. The short-term economic disincentive for moving a structure could increase the likelihood the structure will stay in place and face repetitive damage, ultimately resulting in personal and societal costs associated with insurance and rebuilding.

height shall be measured from the average grade of the ground at the base of the structure or the minimum elevation necessary to meet the prerequisites for federal flood insurance as determined by the National Flood Insurance Program/FEMA shown on any applicable Flood Insurance Rate Map. The [Commissioner of Planning/Zoning Enforcement Officer/Building Inspector or his/her designee] shall be responsible for any interpretations concerning average grade and/or base flood elevation.


1.2.3 Maximum Lot CoverageMaximum lot coverage is a zoning standard that limits the amount of land in a developable lot that can be covered by buildings, structures and impermeable areas such as asphalt driveways and concrete patios. An impervious surface is land cover that cannot effectively absorb or infiltrate water, such as non-porous asphalt or asphalt sealants, non-porous concrete, roofing materials, and certain gravel surfaces used in roadways or parking lots. Some municipalities require a certain percentage of planting area, with the remainder available for pavement and buildings installed pursuant to zoning.

The “maximum lot coverage for structures” requirement ensures open space on a lot which helps to maintain a consistent land use pattern in residential neighborhoods, provides for adequate light and air to all properties, and prevents public nuisances like increased storm water runoff and other environmental hazards.

Lot coverage regulations vary on the types of impervious surface which is factored into the coverage equation. A less restrictive approach for residential properties would only be to count permanent structures such as homes, garages, porches, and sheds. A moderate approach would add to the list sidewalks, driveways, paved patios, sport courts, and other impervious surfaces. The most inclusive approach would also include wooden or composite planked decks


without spacing between the planks and impervious area underneath, ponds, and swimming pools.

Chapter 178 of the City of New Rochelle (NY) Zoning Law is dedicated to impervious surfaces. The purpose statement says:

Natural, pervious surfaces have a direct relationship to the health, safety and welfare of the community since the percolation of rainfall through soils reduces erosion and flooding, contributes to the replenishment of groundwater and groundwater ecosystems, provides for the removal of pollutants contained in surface waters, reduces the need for the public construction of storm drains, basins, and other off-site structures, provides a medium for the planting and maintenance of groundcover and trees, reduces heat and the need for air conditioning, absorbs air pollution, and adds to the aesthetic quality of the community. The covering of natural pervious surfaces with macadam, concrete, tiles, bricks, roofs, and other impervious surfaces for the creation of subdivisions and for residential and nonresidential development on private lots, even when dry-wells and other on-site storage and treatment systems are utilized, contributes to higher ambient temperatures and greater demand for energy, increased loss of habitat for insects, birds, and other wildlife, covering of productive topsoil, global warming and ozone depletion, water pollution, all of which adversely affect the inhabitants of the City of New Rochelle. Trees are recognized as being able to mitigate the negative effects described above.34

New Rochelle requires applicants for building permits for new construction, building expansion, parking area, driveway, swimming pool, or other structures that will create or expand impervious surfaces by more than 200 square feet to get a permit specifying the allowed amount of impervious surface and the required environmental mitigation. Mitigation includes the planting of trees or, where technically impractical or impossible, the payment of fees to the City Tree Fund to defray the City’s costs for acquisition, maintenance, and planting of trees elsewhere.35

Other ways to minimize impervious surfaces may be accomplished by municipalities through local policies and road development standards. For example:

Reduce required roadway widths Change requirements related to sidewalk widths and allow construction with permeable

materials Reduce required driveway widths and consider requiring porous pavement or other

permeable surfaces for some or all of the driveway Minimize the number and size of cul-de-sacs

USAGE

Insert into the definitions and general standards sections of a municipal zoning law, and into the schedule of dimensional regulations for each zoning district.



City of New Rochelle (NY) Municipal Code, Chapter 178 Impervious Surfaces; Chapter 331 Zoning Article II Definition and Word Usage and Attachments 1 and 336

LANGUAGE

Add the following definitions to the list of zoning definitions in the municipal code:

Building - Any structure over four feet high having a roof, self-supporting or supported by columns, walls, air pressure, or similar supports, which is affixed to the ground and intended for the housing or enclosure of persons, animals or chattel.

Diameter at Breast Height (DBH) - A standard measurement of trees made at 4 1/2 feet above ground level on the uphill side.

Impervious Surface - Any surface or material through which water will not flow under ordinary hydrostatic pressure and including structures, parking areas, driveways, sidewalks, terraces and paved areas.

Lot Coverage, Total - That percentage of lot area covered by the ground floor area of all buildings sited thereon, together with all other structures, including pavement and other impervious surfaces.

Structure - Anything constructed or erected, the use of which requires location in the ground or attachment to something having location in the ground. Included are buildings, swimming pools, parking garages, decks, paddle tennis courts, or any assembly of materials over four feet in height, but not anything requiring only simple paving or surfacing of the ground, such as parking lots, driveways or sidewalks.

Add to the General Standards section of the zoning law:

(1) Creation or expansion of impervious surface.

(a) On private property, no person who requires or will require a building permit for new construction, building expansion, parking area, driveway, swimming pool, or other structure shall be permitted to create impervious surface or to expand any existing impervious surface by more than 200 square feet, utilizing macadam, concrete, tiles or bricks with mortar, asphalt shingles, slate, plastic, or other similar impervious material, through the construction of buildings, carports, driveways, walkways, patios, pools, roadways, sidewalks, or other similar structures without first obtaining a permit from the [Code Enforcement Officer/Building Inspector] and without required mitigation as approved by the approval authority.


(b) Approval authority. Where the building permit approval process requires prior approval by the Planning Board, as in the case of site plans, subdivisions, and some special permit uses, the Planning Board shall be the approval authority. In all other cases, where a building permit is required for construction, demolition, site work, or development, the [Code Enforcement Officer/Building Inspector] shall be the approval authority.

(c) Permit process. The permit to create or increase impervious surface by more than 200 square feet shall be part of the existing building permit application and approval process. The applicant shall provide a schedule precisely calculating the increased area of impervious surface on the parcel or lot for which the building permit is being sought, which schedule shall be clear enough to allow verification by Bureau of Buildings staff. The applicant shall also clearly calculate and summarize the total additional diameter of trees proposed to be planted. Plans submitted with the building permit application shall indicate where trees are proposed to be planted and shall identify species and DBH of proposed trees to enable Bureau of Buildings staff verification.

(d) Mitigation. To mitigate the negative environmental impacts associated with the creation or expansion of impervious surfaces, for every 200 square feet of impervious surface created or expanded or part thereof in excess of the first 200 square feet, the property owner shall plant one tree with a minimum DBH of two inches. Trees with a greater DBH may satisfy this requirement in a mathematically proportionate manner, so that, for example, a tree with four-inch DBH may be planted for 400 square feet of newly created or expanded impervious surface beyond the first 200 square feet. Such trees shall be planted in accordance with the specifications of the landscape nursery from which the tree(s) is purchased or of a licensed design professional.

Add to the Schedule of Dimensional Regulations for each district.

District/Use

Maximum Dimensional RequirementsCoverage

Buildings Impervious SurfacesGeneral Commercial 100% 100%Light Industry 60% 90%Two-Family 30% 60%One-Family Waterfront Residence

25% 45%

One-Family Residence 20% 35%

[A schedule of dimensional regulations or bulk standards chart will typically include other information, such as allowed density (dwelling units per gross acre], minimum lot frontage, front setback, side setbacks, rear setbacks, and height limits. The chart here is abbreviated to focus on lot coverage and impervious surface area.]


1.2.4 Setbacks

A setback is a minimum distance that a structure must be placed away from a property line or another structure. Setback distance is an important decision as it can determine the life of the structure and prevent costly shore protection measures down the line by property owners attempting to stop the natural process of coastal retreat. There are a variety of methods that can be used as the basis of a setback. While ideally, setbacks should take into consideration all factors comprehensively, it may be more straight-forward for local law development to identify a single component to establish as a basis of setback.

Municipalities may also wish to establish setbacks from natural features such as a river’s mean highwater mark or the center of a stream by enactment of a separate local law, independent of the zoning regulations and the zoning variance process. When doing so, consideration should be given as to how local code enforcement officials can determine compliance with such standard. When drafting a local law that would establish setbacks from such features, the municipal attorney must draft the separate local law to include a provision superseding the State zoning enabling statutes in Town Law or Village Law (as appropriate), citing the authority to adopt local laws under the New York State Constitution Article IX and Municipal Home Rule Law § 10. Additional guidance regarding supersession of State statutes can be found in the Department of State publication, Adopting Local Laws in New York State.37 The Coastal Shoreline Protection Measures chapter of these model local laws contains several model setback provisions that require supersession.

Model flood damage prevention laws that communities can adopt to join the National Flood Insurance Program (NFIP) are available from the NYS Department of Environmental Conservation. Flood damage prevention laws are typically separate from zoning and contain their own variance procedures. Such laws are enforced by a “Local Administrator” whose duties include reviewing subdivision and other proposed new development to determine whether building sites will be reasonably safe from flooding. If a proposed building site is located in an area of special flood hazard, all new construction and substantial improvements must meet the applicable standards contained in the construction standards section of the flood damage prevention law. The example below, which is adapted from a similar model from the State of Mississippi, would add to the construction standards section a paragraph describing the need for building sites to be setback from a special flood hazard area a distance that factors in the slope of the land. The Management of Floodplain Development chapter of these model local laws includes information about flood damage prevention laws and additional ways they can be enhanced to increase resiliency.

USAGE


Incorporate language into the local flood damage prevention law in the section generally presented under the heading “Construction Standards; General Standards; Subdivision and Development Proposals.”


City of Gulfport (MS) Flood Damage Prevention Ordinance (2008 Version), Article 5 Provisions for Flood Hazard Reduction, Section D Standards for Subdivision Proposals38

Mississippi Emergency Management Agency Model Flood Damage Prevention Ordinance, Article 5 Provisions for Flood Hazard Reduction, Section F Standards for Subdivision Proposals and Other Proposed Development39

LANGUAGE

Add the underlined language and table to the section of the flood damage prevention local law that establishes general standards for subdivision and development proposals:

5.1-1 SUBDIVISION AND DEVELOPMENT PROPOSALS

The following standards apply to all new subdivision proposals and other proposed development in areas of special flood hazard (including proposals for manufactured home and recreational vehicle parks and subdivisions):

(8) Each proposed lot must have a designated buildable site above the special flood hazard area (SFHA) as shown on the most current Flood Insurance Rate Map. The distance of the buildable pad or site above the SFHA shall depend on the slope of the ground and in accordance with the following table:

Distance from Special Flood Hazard Area Minimum Slope from Special Flood Hazard Area to ground level at pad

20 feet 5.0 percent30 feet 3.33 percent40 feet 2.5 percent50 feet 2.0 percent60 feet 1.67 percent70 feet 1.43 percent80 feet 1.25 percent90 feet 1.11 percent

100 feet 1.0 percent


Endnotes


1 Model Conservation Zoning District and Natural Resource Protection Standards. (2010). Lancaster County Planning Commission. Retrieved 12/11/18 from http://www.lancastercountyplanning.org/DocumentCenter/Home/View/154

2 Conservation Advisory Councils and Boards: A Guide to the Organization and Operation of Local Environmental Advisory Councils. (1997). Westchester County Environmental Management Council. Retrieved 12/13/18 from https://clctrust.org/wp-content/uploads/2018/03/CAC-Guide.pdf

3 Haeckel, I. and L. Heady. Creating a Natural Resources Inventory: A Guide for Communities in the Hudson River Estuary Watershed. (2014). Department of Natural Resources, Cornell University, and New York State Department of Environmental Conservation, Hudson River Estuary Program. Retrieved 12/11/18 from http://www.dec.ny.gov/docs/remediation_hudson_pdf/nriall.pdf

4 Conserving Natural Areas and Wildlife in Your Community: Smart Growth Strategies for Protecting the Biological Diversity of New York’s Hudson River Valley. (2008). New York State Department of Environmental Conservation. Retrieved 12/11/18 from http://www.dec.ny.gov/docs/remediation_hudson_pdf/hrebch.pdf

5 Town of Clinton Recommended Model Development Principles for Protection of Natural Resources in the Hudson River Estuary Watershed: Consensus of the Local Site Planning Roundtable. (2006). Town of Clinton et al. Retrieved 1/30/19 from http://www.dec.ny.gov/docs/remediation_hudson_pdf/hrewbsdclin.pdf

6 New York State Association of Conservation Commissions Website at http://www.nysaccny.org/

7 City of Hudson (NY) Existing Zoning Map from the 2000 Update to the Comprehensive Plan. Retrieved 12/11/18 from http://www.cityofhudson.org/document_center/Code%20Enforcement/Zoning%20Map.pdf

8 City of Hudson (NY) Municipal Code, Chapter 325 Zoning, Article III District Use Regulations, Section 325-17.1 Core Riverfront C-R District, Paragraph A. Retrieved 1/23/19 from https://ecode360.com/16031827

9 City of Hudson (NY) Municipal Code, Chapter 325 Zoning, Article III District Use Regulations and Attachment 1, Section 325-17.1 Core Riverfront C-R District. Retrieved 5/14/19 from https://ecode360.com/16031827

10 City of Hudson (NY) Code, Chapter 325 Zoning, Article III District Use Regulations, Section 325-7 One-Family Residence R-1 District. https://ecode360.com/5082289

11 Town of Saugerties Zoning District Overlay Map. Retrieved 5/14/19 from https://townsaugerties.digitaltowpath.org:10234/content/Generic/View/184:field=documents;/content/Documents/File/60.pdf

12 The Community Risk and Resiliency Act provides that the Department of Environmental Conservation, in consultation with the Department of State, will develop guidance on the use of natural resources and natural processes to enhance community resiliency. When available, a link will be provided at https://www.dec.ny.gov/energy/102559.html

13 Town of Saugerties (NY) Municipal Code, Chapter 245 Zoning, Article VI General Regulations, Section 245-26 Waterfront Overlay District. Retrieved 12/11/18 from

https://www.dec.ny.gov/energy/102559.html

https://townsaugerties.digitaltowpath.org:10234/content/Generic/View/184:field=documents;/content/Documents/File/60.pdf

https://townsaugerties.digitaltowpath.org:10234/content/Generic/View/184:field=documents;/content/Documents/File/60.pdf

https://ecode360.com/5082289



http://www.cityofhudson.org/document_center/Code%20Enforcement/Zoning%20Map.pdf

http://www.cityofhudson.org/document_center/Code%20Enforcement/Zoning%20Map.pdf

http://www.nysaccny.org/

http://www.dec.ny.gov/docs/remediation_hudson_pdf/hrewbsdclin.pdf

http://www.dec.ny.gov/docs/remediation_hudson_pdf/hrebch.pdf

http://www.dec.ny.gov/docs/remediation_hudson_pdf/nriall.pdf

http://www.lancastercountyplanning.org/DocumentCenter/Home/View/154

http://www.ecode360.com/13646672

14 Leatherman, Stephen P. Shoreline Change Mapping and Management Along the U.S. East Coast. Coastal Educatoin & Research Foundation, Inc. (Fall 2003). Retrieved 5/22/19 from https://www.jstor.org/stable/25736596?seq=1#page_scan_tab_contents

15 Town of Lloyd (NY) Municipal Code, Chapter 100 Zoning, Article V Overlay and Other District Regulations, Section 100-25 Waterfront Bluff Overlay District. Retrieved 5/15/19 from https://www.ecode360.com/14350367

16 Town of Lloyd (NY) Municipal Code, Chapter 90 Subdivision of Land, Section 90-3 General Requirements. Retrieved 5/20/19 from https://www.ecode360.com/14347010

17 Transfer of Development Rights. (2010). New York State Department of State. Retrieved 12/11/18 from http://www.dos.ny.gov/lg/publications/Transfer_of_Development_Rights.pdf

18 Ibid.

19 Ibid.

20 Ibid.

21 Town of Riverhead (NY) Municipal Code, Chapter 301 Zoning and Land Development, Article XLII Transfer of Development Rights. Retrieved 2/14/19 from https://ecode360.com/29712487

22 Town of Lysander (NY) Local Law No. 8, adopted June 8, 2015. Retrieved 2/14/19 from https://locallaws.dos.ny.gov/sites/default/files/drop_laws_here/ECMMDIS_appid_DOS20150218075528_35/Content/090213438000dc5a.pdf

23 Town of Warwick (NY) Municipal Code, Chapter 164 Zoning, Article IV Regulations, Section 164-47.4 Transfer of Development Rights (TDR). See also Section 164-47.3 Agricultural Protection Overlay District and Section 164-47 Traditional Neighborhood Overlay (TN-O) District. Retrieved 2/14/19 from https://www.ecode360.com/11978554

24 Town of Clifton Park (NY) Municipal Code, Chapter 208 Zoning, Article VB Open Space Incentive Zoning. See also Article VA Hamlet Mixed Use (HM) District. Retrieved 2/14/18 from https://ecode360.com/6715253

25 Town of Eden (NY) Municipal Code, Chapter 225 Zoning, Article VI Supplementary Regulations, Section 225-34 Transfer of Development Rights. Retrieved 2/14/19 from https://ecode360.com/10572248

26 Transfer of Development Rights. (2010). New York State Department of State. Retrieved 12/11/18 from http://www.dos.ny.gov/lg/publications/Transfer_of_Development_Rights.pdf

27 Fact Sheet: Transfer of Development Rights. (2001). American Farmland Trust. Retrieved 12/11/18 from http://conservationtools.org/library_items/64/files/57

28 Siders, A. Managed Coastal Retreat: A Handbook of Tools, Case Studies, and Lessons Learned. (2013). Columbia Center for Climate Change Law Columbia Law School. Retrieved 12/11/18 from https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/ManagedCoastalRetreat_FINAL_Oct%2030.pdf

https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/ManagedCoastalRetreat_FINAL_Oct%2030.pdf

https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/ManagedCoastalRetreat_FINAL_Oct%2030.pdf

http://conservationtools.org/library_items/64/files/57

http://www.dos.ny.gov/lg/publications/Transfer_of_Development_Rights.pdf



https://www.ecode360.com/11978554

https://locallaws.dos.ny.gov/sites/default/files/drop_laws_here/ECMMDIS_appid_DOS20150218075528_35/Content/090213438000dc5a.pdf

https://locallaws.dos.ny.gov/sites/default/files/drop_laws_here/ECMMDIS_appid_DOS20150218075528_35/Content/090213438000dc5a.pdf


http://www.dos.ny.gov/lg/publications/Transfer_of_Development_Rights.pdf



http://www.ecode360.com/13646672

29 Otto, K. Smart Growth through the Transfer of Development Rights. (2010). New Jersey. Retrieved 12/11/18 from http://www.njfuture.org/wp-content/uploads/2011/07/Case-Studies-in-Transfer-of-Development-Rights-8-10-Intern-report.pdf

30 City of Middletown (CT) Municipal Code, Section 46 Flood Area Managements Regulations, Section 46.06 Design Standards for Subdivision Proposals, Section 46.06.07. Retrieved 5/17/19 from http://www.middletownct.gov/DocumentCenter/View/1552/Section-46--Flood-Area-Management-Regulations-PDF?bidId=

31 Town of Wheatland (NY) Municipal Code, Chapter 130 Zoning, Article II Zoning Map; District Regulations, Section 10-11 Floodplain and Residence Districts: Table of Dimensional Regulations. Retrieved 5/17/2019 from https://ecode360.com/10501218

32 Engineering Principles and Practices for Retrofitting Flood-Prone Residential Structures. (2012). FEMA P-259. Retrieved 12/12/18 from http://www.fema.gov/media-library-data/20130726-1506-20490-2593/fema259_complete_rev.pdf

33 Town of Islip (NY) Municipal Code, Chapter 68 Zoning, Article 1 General Provisions, Section 68-3. Retrieved 12/12/18 from http://ecode360.com/7703256

34 City of New Rochelle (NY) Municipal Code, Chapter 178: Impervious Surfaces. Retrieved 12/12/18 from https://ecode360.com/6735551

35 Ibid.

36 City of New Rochelle (NY) Municipal Code, Chapter 178 Impervious Surfaces; Chapter 331 Zoning Article II Definition and Word Usage and Attachments 1 and 3 containing schedules of dimensional regulations. Retrieved 5/15/19 from https://ecode360.com/NE0964

37 See the Department of State publication, Adopting Local Laws in New York State. Available online at https://www.dos.ny.gov/lg/publications/Adopting_Local_Laws_in_New_York_State.pdf

38 City of Gulfport (MS) Flood Damage Prevention Ordinance (2008 Version), Article 5 Provisions for Flood Hazard Reduction, Section D Standards for Subdivision Proposals. Retrieved 5/16/19 from http://www.gulfport-ms.gov/URBANDEV/2574.Amend.Flood.Ord.pdf

39 Mississippi Emergency Management Agency Model Flood Damage Prevention Ordinance, Article 5 Provisions for Flood Hazard Reduction, Section F Standards for Subdivision Proposals and Other Proposed Development. Retrieved 5/22/19 from http://www.msema.org/wp-content/uploads/2018/10/MississippiB-EModelOrdinanceApril2011.pdf

http://www.msema.org/wp-content/uploads/2018/10/MississippiB-EModelOrdinanceApril2011.pdf

http://www.msema.org/wp-content/uploads/2018/10/MississippiB-EModelOrdinanceApril2011.pdf

http://www.gulfport-ms.gov/URBANDEV/2574.Amend.Flood.Ord.pdf

https://www.dos.ny.gov/lg/publications/Adopting_Local_Laws_in_New_York_State.pdf

https://ecode360.com/NE0964


http://ecode360.com/7703256

http://www.fema.gov/media-library-data/20130726-1506-20490-2593/fema259_complete_rev.pdf

http://www.fema.gov/media-library-data/20130726-1506-20490-2593/fema259_complete_rev.pdf


http://www.middletownct.gov/DocumentCenter/View/1552/Section-46--Flood-Area-Management-Regulations-PDF?bidId=

http://www.middletownct.gov/DocumentCenter/View/1552/Section-46--Flood-Area-Management-Regulations-PDF?bidId=

http://www.njfuture.org/wp-content/uploads/2011/07/Case-Studies-in-Transfer-of-Development-Rights-8-10-Intern-report.pdf

http://www.njfuture.org/wp-content/uploads/2011/07/Case-Studies-in-Transfer-of-Development-Rights-8-10-Intern-report.pdf